Baksha v. State of Rajasthan — 1989 DIGILAW 420 (RAJ)

FAROOQ HASAN, J.—The appellant-Baksha confined in District Jail, Tonk, has come up in this appeal against his conviction under Sec. 304, Part 1, IPC, and sentence for nine years rigorous imprisonment with a fine of Rs. 500/-(in default, further—months R.I.) imposed by the learned Sessions Judge, Tonk, vide his judgment dated March 17, 1989. 2. To begin with, stating in a little compass, prosecutions case is based on an oral report lodged by one Laxminarain(PW 4), at police station Nagar Fort (District Tonk) on 24.11.86 at about 5.30. The version given out in oral report is that at about 4 p.m. when the informant was reaping bis Great millet crop in his field and Moti & Sheoji were also reaping Great millet crop in nearby fields whilst his elder brother Bhura (deceased) was grazing his cows nearby, at that time, a flock of sheep belonging, to gipsies of the Marwar (a place from western Rajasthan State) being wandered entered the fields and started feeding on their Great millet crops thereupon his brother Bhura turned the sheeps out of the field to which one Marwari protested thereby war of words in between them and a Marwari apart from infliction of a lathi blow by Marwari on the temporal region of Bhura who fell down and from whose mouth the blood started oozed out, as a result of which, Bhura died. It was also alleged that Marwari was caught hold of by these three persons, Laxminarain (informant), Moti & Sheoji, and on being asked, that Marwari gave out his names as Baksha; and thus, taking Baksha they reached the police station and the deadbody of Bhura has been taken to the village from the field. Upon the aforesaid report,a case for the offence under Section 302, IPC was registered. During investigation, the appellant who was produced at the police station while lodging the oral repot, was arrested, lathi was recovered vide memo Ex. P. 7 and Ex. P. 8; the Investigating Officer reached the spot on 25-11-86, prepared the site plan (Ex.P. 2) and the inquest report (Ex. P.) and then got the post mortem report (Ex. P.4) from the doctor who conducted autopsy on the person of Bhura (deceased). After completion of investigation, challan was filed in the Court against the appellant for the offence under Section 302, IPC and he was committed to the Court of Session for trial. P.) and then got the post mortem report (Ex. P.4) from the doctor who conducted autopsy on the person of Bhura (deceased). After completion of investigation, challan was filed in the Court against the appellant for the offence under Section 302, IPC and he was committed to the Court of Session for trial. The learned Session Judge framed the charge under Section 302 IPC against the appellant who denied, the charge and claimed to be tried. In all nine witnesses have been examined by the prosecution. The accused-appellant in his statement denied the allegation levelled against him by the prosecution witnesses. but did not produce any witness in defence. Learned trial Court after hearing the parties, passed the impugned judgment. Hence this appeal 3. I have heard the learned counsel for the parties. First limb of arguments on behalf of the appellant urged by Shri S.M. Ali was that the appellant was apprehended only on suspicion otherwise there was no evidence against him and in this view of the matter, according to him, the learned trial Court was not justified in convicting the appellant. To fortify the contention (put supra), Shri S.M. Ali learned Advocate for the appellant pointed out a series of infirmities apart from discrepancies in the statements of the prosecution witnesses which I would deal with a little later. 4. Learned Public Prosecutor, on the other hand, contended, that there was evidence against the appellant so, the learned trial Court was justified in convicting the appellant for the offence under Section 304, Part 1, IPC Having considered the points raised and perused the entire record, there cannot be any dispute that the deceased died due to the injuries sustained on his person and the cause of death as mentioned in the post mortem report as well as stated by the doctor (PW 3) before the trial Court, was due to fracture on the temporal bone of the skull. In the post mortem report three injuries were stated to have been found on the dead body of the deceased which are quoted below : — 1. Lacerated wound 1/2 cm. x 1/2 cm. on medical malleolus on the left ankle. 2. Laceration 1/2 cm. x 3/4 cm. on the upper lips. 3. Swelling 10 cm. x 3 cm. In the post mortem report three injuries were stated to have been found on the dead body of the deceased which are quoted below : — 1. Lacerated wound 1/2 cm. x 1/2 cm. on medical malleolus on the left ankle. 2. Laceration 1/2 cm. x 3/4 cm. on the upper lips. 3. Swelling 10 cm. x 3 cm. on the left temporal region of the skull; on dissection there was fracture on the left temporal bone Extensively from left temporal medibular joint upto the centre of the bone. There is sub dural haemorrhage present over the brain surface. 5. In order to delineate the contention raised by the learned counsel for the appellant, one has scrutinise the evidence led by the prosecution so as to ascertain whether the prosecution in the facts and circumstances of the case brought on record has succeeded in bringing home the culpability against the appellant. 6. The trial Court convicted the appellant mainly on the basis of evidence of Laxmi Narain (PW4) who has reiterated first part of the story narrated in the FIR i e. he was in his field having reapen Great millet and that apart Shivraj (PW 1) & Moti (PW 5) were also reaping the Great millet crop in their fields whereas Bhura was grazing cattle and further stated the sheeps large in number entered the field of the deceased and started damaging the standing Great millet crop and at that time, the deceased came at the scene of occurrence and tried to turn out the sheeps from his field but, after war of words, the accused inflicted lathi blow on his head. According to the statement of Laxminarain (PW 4), thereafter they ran towards the place of occurrence and saw that one of the Marwaris has taken away the sheeps and they caught the appellant who has having lathi in his hand and produced the appellant at the police station while lodging the report (Ex. P. 5). But in his cross-examination the witness (PW 4) admitted that in between his field and that of Bhura (deceased)—place of incident fields of Vishna and Raja are situated measurements of which have been stated by the witness as 4 bighas and 3 bighas respectively where admittedly, Great millet crop was standing equal to the height of the man. P. 5). But in his cross-examination the witness (PW 4) admitted that in between his field and that of Bhura (deceased)—place of incident fields of Vishna and Raja are situated measurements of which have been stated by the witness as 4 bighas and 3 bighas respectively where admittedly, Great millet crop was standing equal to the height of the man. In cross-examination the witness (PW 4) also admitted that there was a flock of sheep numbering about 2000 with which five to twenty five Marwaris were there and further more, about 500-700 sheeps entered the field of the deceased which were of the appellant. Tout an contraire, in the report (Ex. P. 5) the informant (PW 4) has given out a different version stating that the sheeps entered in his field and damaged his crop and at that time his brother Bhura intercapted and had war of words in between him and a Marwari and thereafter Marwari inflicted a lathi blow on his head thereby his brother fell down and died. Thus, the witness (PW. 4) con-fronted with his above version and admitted that the said version in Ex. P. 5 is correct. The witness also admitted that after war of words, Marwari and the deceased made assault on the either side. Laxminarain (PW 4) further stated that when he alongwith Moti reached the spot the appellant was standing there and they therefore, caught and produced him at the police station. 7. From what has come out from the statement of the witness (PW 4), (put supra), ft is thus clear that the witness was accompanied by Sheoraj (PW 1) s/o the deceased and Moti (PW 5) and, therefore his evidence was required to be corroborated by Sheoraj (PW 1) arid Moti (PW 5) but unfortunately, his statement(PW 4s) has neither been corroborated by Sheoraj (PW l)nor by Moti (PW 5) who has been turned hostile. Sheoraj (PW 1) is son of the deceased and he initially had gone to say before the trial Court that no injury was inflicted on the person of the deceased in his presence and, therefore he was declared hostile. Sheoraj (PW 1) is son of the deceased and he initially had gone to say before the trial Court that no injury was inflicted on the person of the deceased in his presence and, therefore he was declared hostile. However, in cross-examination he admitted infliction of lathi blow by one Marwari on the person of his father and not by the appellant and moreso, in cross-examination done by the learned counsel for the accused, the witness(PWl) admitted that no damage was done in their field inasmuch as the sheeps never entered their field whilst those were passing through a public way and at that time his father intercepted and asked Marwari not to pass through the public way thereby the occurrence took place. 8. Moti (PW 5) has stated that at the relevant time he was at his house and he was informed by Girraj that a Marwari inflicted a blow on the person of his elder uncle who died and on this information, he bad gone to the scene of occurrence and when he reached there he saw that Laxminarain, Hajari, Badri, Girraj & Heeralal were present but Marwari was not there. Whereas, Girraj (PW 7) has deposed that after hearing hullabaloo he was first to reach at the scene of occurrence and there he found that a number of Marwaris was standing there and among them the appellant was caught. According to his evidence (PW 7s) Laxminarain and others reached the spot after him, inasmuch as he admitted in his cross-examination that the place where the deceased was beaten was not visible because the crop of Great millet was standing in between the fields of the witnesses and he did not see any person beating the deceased. 9. Badri (PW 6) stated that he was informed by Girraj of the incident and when he alongwith Moti, Girraj and Heeralal reached the spot, none was there whilst Laxminarain, Moti and Sheoraj had gone to the police station alongwith Marwari but that Marwari was not taken in his presence. 10. Hajari (PW 2) has stated that he was informed about the incident at the time when he was in his house and on this information, he alongwith, Badri & Heeralal went at the place of occurrence. 10. Hajari (PW 2) has stated that he was informed about the incident at the time when he was in his house and on this information, he alongwith, Badri & Heeralal went at the place of occurrence. In his cross-examination, the witness (PW 2) admitted that at the time when Girraj informed him about the incident and he did not mention the name of the assailants.-And, name of the assailants was made known to them at the spot. According to his statement, Moti, Laxminarain and Sheoraj were present at the time when he reached the place of occurrence but the assailant was not present there and he had gone on the western side and none of them went towards the flock of sheeps nor to the Marwari who were staying at some distances. 11. Heeralal (PW 8) has stated that he was informed by Girraj about the incident and on getting such an information he alongwith, Badri, Girraj and Moti went at the place of occurrence and there he found dead body of the deceased, Bhura where Laxminarain, Moti & Sheoraj were not there and they had gone to the police station. 12. From the above narration of the evidence picked from the statements of the witnesses it appears that the evidence of Laxminarani (PW 4.) has not been corroborated by other prosecution witnesses on material particulars and his evidence is self contradictory and that apart destroying the prosecution case, itself. At one point of time, the witness (PW 4) claimed himself as an eye witness of the incident but, subsequently, in his cross-examination admitted that two fields consisting of several bighas situated in between his field and the place of occurrence where the crops of Great millet were standing equal to height of a man. At one point of time, the witness (PW 4) claimed himself as an eye witness of the incident but, subsequently, in his cross-examination admitted that two fields consisting of several bighas situated in between his field and the place of occurrence where the crops of Great millet were standing equal to height of a man. Thus, the witness appears to be false being foisted and cooked up as would be evident from the fact that in the report he had alleged that the damage in the crop of Great millet was done by the sheeps and the Marwaris were intercepted by the deceased at that time-thus from these versions given out in the report, the place of occurrence should have been the field of Laxminarain but subsequently, the witness (PW 4) changed the version before the trial Court by saying that the occurrence took place in the field of deceased where the crop of Great millet was damaged by the sheeps of the Marwari which were about 500-700 in numbers. This part of his statement also does not appear to be true because admittedly, the appellant was not known to him so, when the appellant was. not known to the deceased how is it claimed that 500-700 sheeps were of the appellant. The witness (PW 4) confronted with the facts mentioned in the report as well as the police statements wherein different place of incident has been shown and on being confronted, the witness admitted that the facts mentioned in the F.I R. as well as in the police statements are correct and it is thus clear that the witness has not given any consistent version and he has changed the version from time to time by way of embellishments and exaggerations indulging in equivocation and prevarication, 13. Laxminarain (PW 4) also deposed that Girraj (PW 7) was also with them and who was left with dead body of the deceased. This fact has been disbelieved by the trial Court. The statement of the witness is further belied from the following fact that he has deposed that he reached the police station and lodged report while Hajari stated that Sheoraj (PW 1) son of the deceased was sent to the police station with a written report to lodge information at the police station. 14. The statement of the witness is further belied from the following fact that he has deposed that he reached the police station and lodged report while Hajari stated that Sheoraj (PW 1) son of the deceased was sent to the police station with a written report to lodge information at the police station. 14. Looking to the entire statement of the witness (PW4), the learned trial court was not justified in holding the witness (PW4) as eye witness of the occurrence. As said earlier, admittedly Laxminarain (PW4) was reaping the crop in his own field and the place of incident was atleast seven bighas away from his field and in between his field and the place of incident, the crop of Great millet was standing and therefore, it was improbable for the witness to have witnessed the occurrence at such a distance and at least to have identified the person who was admittedly not known to him, inflicting any lathi blow on the person of the deceased and that too at the instance of the accused, as is the prosecution case. In this view of the matter, the learned trial court was not justified in placing reliance on the testimony of Laxminarain (PW4) and then acting upon his evidence so as to base the conviction against the appellant for the offence of murder. 15. The fact that Laxminarain (PW 4) was eye-witness is further belied by the evidence of Dr. Puran Mal Sharma (PW 3) who has stated that the deceased sustained three injuries but Laxminarain (PW 4) has given description of only one injury. Had he been eye witness of the occurrence then definitely, he could have mention that the deceased sustained three injuries and he could have assigned the specific overt-act against the assailant or assailants. 16. The testimony of Laxminarain (PW 4) further becomes doubtful by the evidence of Girraj (PW 7)who has stated that Laxminarain(PW 4) and other persons reached the place of occurrence after him. 16. The testimony of Laxminarain (PW 4) further becomes doubtful by the evidence of Girraj (PW 7)who has stated that Laxminarain(PW 4) and other persons reached the place of occurrence after him. In the presence of this state of version of Girraj (PW 7) it can be safely said that Laxminarain (PW 4) was not eye-witness because according to Girraj (PW 7) neither did he see assailants nor was it probable as the crop of great millet was standing in the fields, and obviously, in these circumstances, rightly, Girraj (PW 7) when did not claim himself as eye witness, then it cannot be believed that Laxminarain (PW 4) who according to Girraj (PW 7) had reached there at the spot after him, could not claim himself as eye-witness. Moti (PW 5) who according to him went at the place of occurrence alongwiih him. did not turn hostile and not at all support the evidence of Laxminarain (PW 4). Similar is the position of Sheoraj (PW 1) who is also said to have gone at the scene of occurrence alongwith Laxminarain (PW 4) and who is son of the deceased but he (PW 1) also turned hostile and has given self-contradictory versions before the trial Court. 17. According to the learned counsel for the petitioner, as already stated, the appellant has been made accused in this case merely on a suspicion whereas no direct or indirect evidence is available on record connecting the accused with the crime of murder. Learned trial Court on the basis of the evidence of Sheoraj (PW 1) and Laxminarain (PW 4) came to this conclusion that the appellant was caught by Laxminarain, Moti and Sheoraj at the place of incident and this was only a circumstance against the appellant. Learned trial Court on the basis of the evidence of Sheoraj (PW 1) and Laxminarain (PW 4) came to this conclusion that the appellant was caught by Laxminarain, Moti and Sheoraj at the place of incident and this was only a circumstance against the appellant. But, in my view, looking to the evidence adduced by the prosecution discussed (put supra), it cannot be said that the appellant was caught by the witnesses at the spot immediately after the infliction of blow on the person of the deceased, and in this regard, the evidence of Hajari (PW 2) cannot be ignored because he stated that he reached at the place of occurrence after and Moti, Laxminarain & Sheoraj (PW 1) were present at the place of occurrence and the assailants were not present there, and the name of the assailant was made known to them after arrival of the police and the police had come at the place of occurrence next day of the incident. This witness (PW 2) has not been declared as hostile. Laxminarain (PW 4), Moti (PW 5), Badri (PW 6) also reached the place of incident but they did not state that the assailant was there present or that the appellant was apprehended by any of the person present there or that he was caught by any of the witnesses. Some of the witnesses in their statements have deposed that there were only two shepherds who were with the flock of sheeps which was of about 2000 sheeps. One of the witness (PW4) star witness of the occurrence on the basis of whose statement, the appellant has been convicted has gone to say that there were about five to twenty five Marwaris shepherds alongwith sheeps.. Even Hajari (PW 2) has specifically alleged that the shepherds left the place of occurrence at the time when the witness reached the spot, Girraj (PW 7) who claimed himself to be person who first reached the place of occurrence also stated that other Marwaris were also standing near the place of incident. In these circumstances, I fail to understand as to how and why the appellant can be held to be an accused in this case for the proposed crime. 18. In these circumstances, I fail to understand as to how and why the appellant can be held to be an accused in this case for the proposed crime. 18. In view of what has been discussed (put supra) in my opinion it is a case where the ocular account is not clear and credible because, the very presence of the eye-witnesses in this case during the infliction of alleged lathi blow by the Marwari, has been seriously and rightly assailed as totally false as is emerged from the discussion of the prosecution evidence referred to above, Moreso, the evidence of Sheoraj (PW 1) is not of sterling worth and thus, the trial Court was not justified in placing reliance on the testimony of this witness (PW 1). That apart, Sheoraj (PW 1) cannot be held to be eye witness of the occurrence and it would be of no use to reiterate the reasons for rejecting his testimony but only to state that he has gone to depose in his statement while admitting that his father made assailt on the person of the accused and such a fact has not been stated by any other witnesses who merely said that there was a war of words in between the accused and the deceased and in these circumstances it can easily be said that the admissions wrung out from his statement (discussed above) do not favour with the prosecution but bore hostility to the accused. 19. Further, the testimony of Laxminarain (PW 4) that the sheeps of the accused appellant damaged the crop of Great millet of the deceased and that was only cause to assault the deceased, is also belied by the evidence of the Investiga-ting Officer who has categorically stated that no crop was standing in the field where the place of occurrence situated, inasmuch as in site pian(Ex.P. 2) no crop has been shown, Sheoraj (Pw 1) also controverted this fact and according to him the altercation/scuffle took place merely on the ground that his father made a protest on the passing of the sheep from a public way and because crop in the field of the deceased was damaged by the sheeps. Indeed, without any motivating cause, the prosecution story in its larger aspect therefore, becomes tainted with an area of improbability. 20. Indeed, without any motivating cause, the prosecution story in its larger aspect therefore, becomes tainted with an area of improbability. 20. The time, the manner of recording and the despatching of the first information report in the present case are again matters which cast aspersion in the prosecution story the F.I.R. was lodged on 24-11-86 but was sent to the Magistrate on 26-11-1986—the explanation of delay is absent in the evidence of prosecution. As discussed above and as is emerged from the prosecution evid-ence, the present case was framed at the alleged place of occurrence after inquiries by the police. Whatever may be said regarding the stance, it appears to be plain that the present case is of no evidene and the F. I. R. in the case does not rule out the possibility of considerable delay and the opportunity of consultation and confabulation before the investigating agency may have found itself compelled to name the appellant as culprit. The alleged occurrence took place on 24-11-86 at 4 p. m. whereas the F.I. R, reached the Ilaqa magistrate on 26-11-86 after laps of more than 24 hours; the police came at the place of occurrence on -25-11-1986 on which date, site plan was prepared before which as is evident from the prosecution evidence, the dead body was taken away from the place of occurrence; since from the mouth of the deceased when he fell down, the blood is alleged to have oozed cut and the blood would have certainly laid on the earth but from the prosecution evidence, it appears that no blood stained earth was seized and sent for chemical examination. It appears to me that the Investigating agency had a considerable time at their disposal to frame the criminal case and in any case, the basic checks for testing its promptitude are non existent in the instant case. The other suspicious circumstances in the case, as already pointed out, is the patent conflict between the medical and the oral account, in addition to site plan with regard to the crop in the fields. There appears to be thus a vital circumstantial factor belying the ocular account. Be that as it may, the mode and the manner in which the alleged eye witnesses are alleged to have witnessed the emergence of the appellant does not appear to me as easily acceptable. There appears to be thus a vital circumstantial factor belying the ocular account. Be that as it may, the mode and the manner in which the alleged eye witnesses are alleged to have witnessed the emergence of the appellant does not appear to me as easily acceptable. There is not as scintillate of evidence to show the presence or emergence of the appellant muehless inflliction of a lathi blow on the person of the deceased looking to the entire gamut of the facts and circumstances unfolded by the prosecution in its evidence. 21. In view of what has been stated above, in my view, there is not an iota of evidence to establish the complicity of the appellant in the culpability inasmuch there is no circumstance inconsistent with the innocence of the appellant and the circumstances relied on are so inconclusive, that it would be unsafe to accept the same as the basis for a conviction against the appellant on a grave crime, 22. The learned Sessions Judge did not give due consideration to the infir-mities and inconsistencies in the prosecution evidence not with regard to minor details, but with regard to material aspects pointed out in foregoing paragraphs of this judgment (put supra), and unjustifiably recorded an order of conviction. In my view, the order of conviction cannot be sustained in law. 23. For the aforementioned reasons, I hold that the solitary and uncorroborated evidence of Laxminarain (PW 4), Sheoraj (PW 1) & Moti (PW 5) apart from others pointed out above is not only so riddled with infirmities that it is not possible to place implicit reliance on the same, but also those infirmities cast a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. Further more, in view of what has been dilated (put supra) apart from keeping m mind all clouding infirmity, in my view, there was no legal evidence before the trial Court to have founded that the infliction of lathi blow on the person of the deceased was at the intance of the appellant and appellant alone. That being so, the appellant has to be recorded the benefit of reasonable doubt. 24. In the result, this appeal is allowed. The conviction and sentence as imposed upon the appellant for the offence u/s 304 Part I, IPC. That being so, the appellant has to be recorded the benefit of reasonable doubt. 24. In the result, this appeal is allowed. The conviction and sentence as imposed upon the appellant for the offence u/s 304 Part I, IPC. by the learned Sessions Judge, Tonk, in his judgment dated 17.3 1989 are set aside and the appellant, Baksha, is acquitted of the charge. He is in jail, and shall be set at liberty forthwith.